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Textualism as an Ally of Antitrust Enforcement: Examples from Merger and Monopolization Law
Get PDFThis Article will first briefly present an overview of the textualist method of statutory interpretation. It will then briefly engage in a textualist analysis of important portions of two antitrust statutes: Section 2 of the Sherman Act and Section 7 of the Clayton Act. At least in these areas, textualist analysis should, if anything, help re-invigorate antitrust enforcement
Religious Gerrymandering: A New Avenue for Redistricting Challenges?
Get PDFRecently, the Supreme Court significantly limited review of partisan gerrymandering claims, closing the door to a substantial portion of redistricting challenges. However, religious-based redistricting is an overlooked area that should be explored under both federal and state Constitutions. Existing redistricting standards can easily be applied to religious gerrymandering claims. In addition, the federal Establishment Clause may provide a basis for some especially egregious instances of religious gerrymandering. However, perhaps the least explored and most viable avenue for relief is through reliance on state constitutional protections, such as the unique language of Utah’s Constitution. Using Utah as a case study, I suggest that religious gerrymandering is an area ripe for development through legal challenges
A Research Agenda for Standards-Essential Patents
Get PDFThis Chapter discusses the current state of legal, economic and policy research on standards-essential patents (SEPs) and fair, reasonable and nondiscriminatory (FRAND) licensing of SEPs, and recommends additional research directions for the future. Areas for future research include the investigation of market adoption of standardized products subject to FRAND licensing and available on a royalty-free basis, measurement of various characteristics of SEPs including disclosure, validity, essentiality and transfer, the evolution of SDO and consortia patent policies, SEP licensing behavior, both by SEP holders and product manufacturers, SEP and FRAND disputes and litigation, including arbitration, and competition among patent pools for standards and the political economy of SEP policy making
Shifting the Male Gaze of Evidence
Get PDFIn this article I target the altar at which many of us worship—the pursuit of rationality. For evidence purposes, rationality is defined as decisions that are reasonable, objective, inductive, and free from the bias of emotion. This view of rationality is deeply embedded in evidence scholarship and practice. It is also reflected in evidence rules like FRE 403, which treat emotional testimony as unfairly prejudicial simply because it is emotional. The anti-emotion view of rationality reflects the thinking of Western philosophical giants. Plato, Hobbes, Descartes, and Bacon all thought that men should strive for rationality by suppressing their emotions, because emotions were associated with femininity and “the lower races.” As I will explain, this view of rationality has engendered patriarchy by taking a particular male perspective and equating it with something that is objective, superior and innate. The thesis of this article is that emotions and reasons are not dichotomous, but rather functionally and biologically interdependent. Emotions can also lead to more just decisions, by allowing judges and juries to evaluate the legal and moral relevance of emotions.
To advance these claims, the article will proceed in three brief parts. In the first part, I will explain how modern evidence practice incorrectly places emotion as at odds with reason. I will use representative FRE 403 cases to reveal how emotional evidence is assumed to be unfairly prejudicial, even when it confers independent probative value. In the second part, I will explain how rationality was conceptually gendered from the start, and continues to advance a male gaze that reinforces gender norms while silencing the oppressed. In this third part, I will describe how emotions are neither monolithic nor universally corrupting of reason. Indeed, well-vetted findings from social psychology and neuroscience demonstrate that emotional processes are necessary for optimizing cognitive processes like perception, memory, evaluation, and judgment. The view of emotion in evidence scholarship and practice is far too monolithic. Just as thoughts can be biasing or corrupting, so too can emotions. And just as thoughts are critical for decision-making, so too are emotions.
I hope you will enjoy reimagining what the rules could and should be, if they were written today—with a less gendered, more nuanced, and accurate view of the value of emotions to decision-making
Plastics and the Limits of U.S. Environmental Law
Get PDFPlastics are among the most ubiquitous materials on the planet, used for functions ranging from single-use cups to medical syringes to industrial equipment. The properties that make plastic useful, however, also make them highly persistent in the environment when improperly disposed. Moreover, although plastic polymers are inert, they break down in the environment into harmful microplastics and nanoplastics, and plastics are often made using toxic chemicals or include toxic additives. These properties have caused a plastic pollution crisis. Massive amounts of plastics and breakdown chemicals contaminate the oceans and other ecosystems throughout the globe. The United States continues to contribute to this crisis despite extensive regulation at all phases of the plastics life cycle. Two key limitations in U.S. environmental law help explain this paradox. First, the U.S. environmental regulatory process is so granular and complex that EPA and other agencies cannot keep up with massive growth and evolution in plastic materials and production. Second, the core philosophy of U.S. environmental law is to regulate production externalities without infringing on producer and consumer choice. We rarely question a product’s societal utility relative to its environmental impacts. U.S. contribution to the plastic pollution crisis is not likely to abate unless these limitations are addressed. Moreover, the limitations highlighted by this analysis apply to other applications of U.S. environmental law, resulting in continued releases of “forever chemicals” and other intractable forms of pollution
Owning the Right to Migrate: A Proposal for Migration Corridors in the Greater Yellowstone Ecosystem
Get PDFThe Greater Yellowstone Ecosystem (GYE), one of the world’s most treasured regions, consists of an interconnected patchwork of federal, state, and private lands. The GYE’s elk, mule deer, and pronghorn antelope (pronghorn) rely on this vast range to complete their seasonal migrations, but development increasingly threatens this natural cycle. Moreover, the GYE’s existing wildlife management framework fails to resolve the tension between wildlife and growth, leaving both wildlife and local communities vulnerable. After reviewing the scope of the GYE’s ecological challenges, this Note proposes a new solution: a policy establishing affirmative easements across designated migration corridors in the GYE and granting ownership of the easements to the GYE’s elk, mule deer, and pronghorn herds. This proposal builds on the Rights of Nature movement by granting property rights to ungulate herds and identifying new strategies to overcome traditional barriers to standing in environmental lawsuits. This Note concludes by arguing that such an innovative proposal is not only possible but critical to preserving these keystone species and the open landscapes they rely on
Laboratories of the Future: Tribes and Rights of Nature
Get PDFFrom global challenges such as climate change and mass extinction, to local challenges such as toxic spills and undrinkable water, environmental degradation and the impairment of Earth systems are well documented. Yet, despite this reality, the U.S. federal government has done little in the last thirty years to provide a comprehensive solution to these profound environmental challenges; likewise, significant state action is lacking. In this vacuum, environmental legal advocates are looking for innovative environmental solutions to these challenges. Against this backdrop, rights of nature have increasingly gained traction as a possible legal tool to help protect the natural environment from the harms perpetrated by humans. Rights of nature laws generally have two elements: (1) legal personhood for natural entities, such that nature has standing in court, and (2) substantive rights for natural entities. This Article explores the scope and origins of rights of nature and examines how they are being implemented both within the United States and abroad. It highlights the work being done by Tribes and Indigenous Peoples in this space and argues that, particularly in the United States, state and local governments should learn from this work. Specifically, the work of Tribes in this space can serve as alternative ethical paradigms and laws for non-Native communities looking for an alternative to the status quo. In the United States, Tribes can serve as “laboratories” for environmental change given their tribal sovereignty and environmental ethics. In addition, Tribes exist within a different legal framework from U.S. states and municipalities. By comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities. Accordingly, environmental reform can benefit from the collaboration and experimentation of Tribes
Preliminary Injunctive Relief in Patent Cases: Repairing Irreparable Harm
Get PDFUnlike a permanent injunction, which is an equitable remedy awarded to an injured party, a preliminary injunction is a form of interlocutory relief that is imposed by a court to preserve the status quo during litigation. In patent cases decided since (and often before) the Supreme Court’s 2006 decision in eBay v. MercExchange, courts have applied a four-factor test when considering the issuance of a permanent injunction. A similar test has evolved for preliminary injunctions, following the Court’s decision in Winter v. NRDC. Both the eBay and Winter tests rely heavily on whether the patentee is likely to suffer “irreparable” harm if an injunction is not granted. Yet despite the very different statutory bases and underlying reasoning for preliminary versus permanent injunctions, almost no scholarly attention or judicial reasoning has been devoted to an analysis of the meaning of irreparable harm in the context of preliminary injunctions. In order to gain a better understanding of the information that courts consider when deciding motions for preliminary injunctions, we collected data from 211 published district court opinions in patent cases decided between 2013 and 2020 in which a preliminary injunction was sought. Based on our findings, as well as recent opinions of the Federal Circuit, we find that much uncertainty and lack of clarity surrounding preliminary injunctive relief can be reduced, or eliminated, by explicit recognition that irreparable harm has (or should have) a certain meaning, and that meaning is not the same as harm. We propose a new four-factor test for irreparable harm when assessing the issuance of preliminary injunctions in patent cases. That test provides that to be considered irreparable, harm should be that which, in the absence of an injunction, 1) would unduly disrupt the status quo, 2) is imminent and likely to occur, 3) is causally linked to the alleged infringement, and 4) unlikely to result in payment of adequate compensation. We believe that the application of this new test will make the preliminary injunction analysis more certain and economically sensible, and better fitted to achieve its stated statutory goals
Comments Submitted in Response to Request for Information to Inform Interagency Working Group on Mining Regulations, Laws, and Permitting
Get PDFOn March 31, 2022, the Department of Interior announced the formation of an interagency working group to develop recommendations for improving Federal hardrock mining regulations, laws, and permitting processes, and invited public comment to help inform the efforts of the working group. The Request for Information sought, among other things, recommendations on “opportunities to reduce time, cost, and risk of permitting without compromising strong environmental and consultation benchmarks.” Members of the Wallace Stegner Center of Land Resources and the Environment, at the S.J. Quinney College of Law, University of Utah submitted comments based on their shared expertise in mining law, public land planning and management, federal Indian law, tribal sovereignty and governance, intergovernmental coordination, and federal permitting issues. The recommendations covered four broad categories: (1) increasing agency capacity to deal with strategic mineral development and associated issues by ensuring sufficient staff, adequate budgets, and institutional knowledge; (2) using land use planning procedures to facilitate mine permitting without causing unnecessary or undue environmental degradation; and (3) creating a voluntary “fast-track” program with a dedicated inter-agency permit processing team for applicants who voluntarily choose to meet the most stringent applicable performance and mitigation standards; and (4) developing incentives to stabilize the strategic mineral supply chain and ensure that strategic minerals are available for domestic needs
The Unfulfilled Promise of Indian Water Rights Settlements
Get PDFAs climate change threatens an already-scarce resource, quantifying tribal water rights is critical to providing additional certainty to an uncertain future. In order to protect the future of their communities, it is critical that tribal water rights move from merely theoretical paper rights to actualized wet water rights